S.36 of the Strata Property Act (SPA) entitles owners to request and obtain certain documents to be kept by the strata corporation under s.35 of the SPA. The most common request is for “correspondence sent or received by the strata corporation and council” – s.35(2)(k). That can include communications between the strata council and the strata corporation’s lawyers. S.35(2)(h) specifically refers to “any legal opinions obtained by the strata corporation”. While access to those documents is not an issue if the advice is general in nature, it can be problematic if the correspondence and opinions relate to a conflict with an owner. Documents that would normally be kept secret from the other party to a dispute, suddenly become available to them; either by direct request or through another owner. That is potentially problematic.
Although various Civil Resolution Tribunal decisions and at least one B.C. Supreme Court decision have touched on the issue, it was not until the decision in The Owners, Strata Plan VR 1120 v Mitchinson, 2022 BCSC 2054 that a comprehensive framework for handling legal communications was decided on.
The court in Mitchinson had to deal with how the concepts of solicitor-client privilege and litigation privilege applied to requests under s.36 of the SPA; specifically in the context of opinions under s.35(2)(h). Both concepts protect communications between a lawyer and their client from disclosure to third parties.
The first thing the court dealt with is whether the individual owners, since they are part of the strata corporation, are clients of the lawyer giving the advice. It held that were not stating:
“[70]… I am satisfied that a strata corporation is a separate legal entity from its owners, and that when the Strata council retains legal counsel, it does so on behalf of the legal entity that is a strata corporation. Simply put, the individual owners are not each clients of the legal counsel retained to represent council, for the following reasons.”
The court then went on to consider to what extent the concept of privilege overrides s.36 of the SPA. It rejected the traditional approach from Azura Management (Kelowna) Corp. v. Owners of the Strata Plan KAS2428, 2009 BCSC 506 that legal opinions could be provided to a non-party owner with the proviso that it not be shared with anyone. Given the importance of solicitor-client privilege that approach was not viewed as “sufficient protection of that privilege”.
In grappling with how to apply privilege to the rights clearly granted under s.36 of the SPA, the court said the following:
[115] Sections 35(2)(h) and 36 of the SPA are clearly intended to abrogate solicitor-client privilege to some extent. However, when read in their entire context, including s. 169(1)(b), it becomes apparent that the language used by the Legislature is insufficient to abrogate solicitor-client privilege for all purposes. Instead, those sections must be interpreted so as to abrogate the strata corporation’s solicitor-client privilege only to the extent that doing so does not compromise the strata corporation’s position in litigation against an owner or owners.
Based on that determination the court established a framework for dealing with legal opinions which applies to requests from any owner, even those not involved in the dispute. That framework is as follows:
a) opinions relating to litigation between the strata corporation and the requesting owner are not disclosable, as specifically provided by s. 169(1)(b) of the SPA;
b) opinions relating to disputes between the strata corporation and the requesting owner that had not resulted in litigation are not disclosable, as protected by solicitor-client privilege; and
c) opinions relating to contemplated or ongoing disputes between the strata corporation and other owners are not to be provided to the requesting owner until such time as the litigation is fully resolved, and all avenues of appeal fully exhausted, at which time they may be provided to a requesting owner. Upon disclosure, the requesting owner is not to share the legal opinions received with any other person or organization.
While the decision in Mitchinson focused on opinions under s.35(2)(h), it clearly extends to correspondence under s.35(2)(k) as those opinion are often given by email.
In Curtin v. The Owners, Strata Plan VIS 4673, 2023 BCCRT 541 the CRT held that the dispute only needs to be contemplated for the principles in Mitchinson to apply. In other words there need only be the prospect that the parties might end up in the CRT in order to invoke those principles.
Strata corporations dealing with requests for communications between the strata corporation and its lawyers will need to carefully review those communications and determine if they fall within the scope of the principles set out in Mitchinson. If they do, the strata corporation does not need to provide them to any owner, even an owner who is not involved in the dispute.
Owners seeking correspondence regarding a legal issue may find that they will not be privy to as much information as they would like. While potentially frustrating their ability to access that information will be limited (at least until the matter is concluded).
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
